Nankidau vs State of Madhya Pradesh (Now State of Chhattisgarh)

Sunil Kumar Sinha, J.—These appeals are directed against the judgment dated 21st August, 1996 passed in Special Criminal Case No. 258/96 by the Additional Judge to the Court of Session Judge, Bilaspur and Presiding Officer, Special Court under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bilaspur. By the impugned judgment, the appellants have been convicted and sentenced in the following manner with the direction to run the sentences concurrently:

The facts briefly stated, are as under:

Prosecutrix (PW1) was a married lady belonging to Gond Tribe. She was aged about 35 years. She was residing with her husband Ratiram and other family members including her brother-in-law, Laxman (PW2). Appellant Heeramati was her neighbour. The case of the prosecution is that on 29.9.1995 at about 8.00 p.m., appellant Heeramati came to the house of the prosecutrix (PW1) and took her to her house on the pretext that they will go to see Nacha (a local dance). When the prosecutrix (PW1) came to the house of appellant Heeramati, she saw that appellant-Nankidau was also present there. Heeramati left them alone in her house and closed the doors of the house from outside. The allegations are that thereafter appellant Nankidau committed forcible sexual intercourse against the prosecutrix (PW1). After the intercourse, the prosecutrix called Heeramati, who opened the door, and then she went to her house. The First Information Report (F.I.R. Ex.P1) was lodged on 2.10.1995 at about 17 hours. The prosecutrix (PW1) was sent for her medical examination. She was examined by Dr.(Smt) Sudha Pandey (PW10) who found no external or internal injury on the person of the prosecutrix (PW1) and gave no definite opinion about the rape. The MLC report of the prosecutrix (PW1) is Ex. P14. Appellant Nankidau was taken into custody and his underwear was seized. Petticoat of the prosecutrix (PW1) was also seized. Two slides prepared from the vaginal swab of the prosecutrix and the above articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Sagar, from where, a report was received. According to the FSL report, spermatozoa were not found on the above articles including the slides.

On trial, the learned Special Judge relied on the testimonies of the prosecutrix (PW1) and her brother-in-law (jeth), Laxman (PW2), and held that the prosecutrix was subjected to forcible sexual intercourse by appellant Nankidau for which appellant Heeramati facilitated him by taking the prosecutrix to her house. The appellants were thus convicted and sentenced in the above manner.

Mr. Arun Kochar, learned counsel appearing on behalf of the appellants, argued that there is inordinate delay in lodging the F.I.R. (Ex.P1); the version of the prosecutrix (PW1) does not appear to be reliable; the prosecutrix (PW1) did not disclose the incident to anyone for 2 days; even she did not disclose the incident to her husband who was admittedly present in the house; medical evidence and the FSL report do not support the version of the prosecutrix (PW1); on her overall conduct, possibility of her being a consenting party cannot be fully ruled in this case; therefore, conviction cannot be sustained.

On the other hand, Mr. J A Lohani learned Panel Lawyer appearing on behalf of the State, opposed these'' arguments and supported the judgment passed by the Special Court.

We have heard learned counsel for the parties at length and have also perused the records of the special case.

Prosecutrix (PW1) was a married lady aged about 35 years. She deposed that on the fateful day at about 8.00 p.m., appellant Heeramati came to her house and took her on the pretext of going to see Necha. She had told her husband that she is going along with Heeramati. As soon as they entered into the house of appellant Heeramati, Heeramati closed the doors of the house and went out from the room. Appellant Nankidau was present in the room. Appellant Nankidau thereafter committed forcible sexual intercourse against her. After the intercourse, she called Heeramati, who opened the door. Thereafter she immediately went to her house and disclosed the story to her jeth, Laxman (PW2). In cross-examination, she admitted that before commission of sexual intercourse, appellant Nankidau had removed all her clothes from her body, thereafter he got her laid down on the floor. He performed sexual intercourse which took about 15 minutes. She admitted that at the time of sexual intercourse, she did not receive any injury. She admitted in clear words that after completion of the sexual intercourse, she got up and worn, her clothes in usual manner. She further admitted that after wearing the clothes, she called Heeramati who opened the door and then only she went to her house. The prosecutrix (PW1) further admitted in Para 8 of her cross-examination that when she reached to her house, her husband was present in the house, but she did not disclose all these facts to her husband. She further admitted in Para-9 that she lodged the report in the police station after 2 days and in between this period, she did not tell the incident to any other person, even to her husband. In Para-15 at her cross-examination, she admitted that she did not resist when appellant Nankidau was performing sexual intercourse.

Laxman (PW2) firstly deposed that the prosecutrix (PW1) disclosed about the incident on the same night. However, in cross-examination, he deposed that the incident was disclosed to him by the prosecutrix (PW1) on the next day. In further cross-examination, he admitted that his brother, husband of the prosecutrix, was present in the house on the fateful day.

In appreciation, we find that as per evidence of the prosecutrix (PW1), she left her house at about 8.00 p.m. in presence of her husband. She reached to the house of appellant Heeramati after a short while. Appellant Nankidau was present in the house of Heeramati. When Heeramati was closing the door of the room, the prosecutrix (PW1) did not raise any alarm. Even when appellant Nankidau was removing her clothes, she did not raise alarm and she allowed to remove her entire clothes. Sexual intercourse was performed for about 15 minutes during which time the prosecutrix (PW1) was lying on the floor of the room. There is no mark of resistance on the person of the prosecutrix (PW1). Even there is no external or internal injury on her person. She admitted in clear words in Para-15 of her cross-examination that while appellant Nankidau was committing sexual intercourse, she did not cause him any injury in resistance.

If we look into the site plan, it would appear that the house of appellant-Heeramati is situated in dense locality of the village and there are many adjacent houses to her house. Two public gali are also adjacent to the house of Heeramati. If the prosecutrix (PW1) would have made alarm on account of the above act of commission of forcible sexual intercourse by appellant-Nankidau, certainly it would have been noticed by residents of the locality or by the persons passing through the gali. But nothing of the kind was done and there is absolutely no evidence in this regard.

As stated above, the version of the prosecutrix (PW1) regarding forcible sexual intercourse is not corroborated by the medical report or FSL report. There is inordinate delay in lodging the FIR (Ex.P1) and no plausible explanation has been given for the same. Not only this, the prosecutrix (PW1) did not disclose the incident to her husband at all who was admittedly present in the house. Even husband of the prosecutrix namely Ratiram was not examined before the Special Court, We are of the view that on the said conduct of the prosecutrix (PW1) and the above material available on record, a possibility of the prosecutrix (PW1) being a consenting party cannot be fully ruled out in this case. Therefore, the conviction based on the above set of evidence cannot be sustained,

The prosecutrix (PW1) was a married lady belonging to Gond Tribe. There is no evidence whatsoever to prove the commission of offence u/s 3(2)(v) of the Special Act. The mere fact that the prosecutrix happened to be a lady belonging to Scheduled Tribe does not automatically attract the provisions of this Act. Apart from the fact that the prosecutrix (PW1) belongs to Gond Tribe, there is absolutely no other evidence on record to prove any offence under the said Act. Therefore, the conviction under the Special Act also cannot be sustained (See Ramdas and Others Vs. State of Maharashtra, . For the foregoing reasons, the appeals are allowed. The conviction and sentences awarded to the appellants under the aforementioned Section of IPC and Section 3(2)(v) of the Special Act are set aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are on ball. Their bail bonds are cancelled and sureties stands discharged.